Is this student eligible to attend our school district? It seems to be a simple question, but one that often does not have a simple answer.

Student residency questions abound as school districts face increasingly challenging registration issues, from family custody and guardianship disputes to homelessness and transient housing concerns. New Jersey Division of Children Protection and Permanency (CP&P) placements, and parents school district “shopping” for a school outside of their permanent residence, can also raise residency questions.

Schools are often left to act initially as judge and jury as they make a fact-sensitive analysis as to whether a student will be permitted to attend the school district. New Jersey school residency laws, and proper use of them, can help districts sort through these challenging issues, however.

Laws Aim for Balance The state’s school residency laws, N.J.S.A. 18A:38-1, et seq. and N.J.A.C. 6A:22-1.1, et. seq., are designed to strike a balance between the right of students to a free public education, and the financial obligations of local school districts to ensure that students attending school within their jurisdictions are entitled to do so. School districts can initially alleviate many basic registration and enrollment questions by ensuring proper procedures and forms for registration are being used.

Registration Coordination The New Jersey Department of Education (NJDOE) issues registration forms for school districts to utilize. School districts can develop their own forms, but they should be consistent with state laws and regulations in that they must:

  • Not seek prohibited information;
  • Properly summarize criteria for attendance for applicant reference;
  • Specify the nature and form of any sworn statements to be filed;
  • Clearly state the purpose in relation to such criteria for which requested information is sought; and
  • Provide notice to applicants that any initial determination of eligibility is subject to more thorough review and reevaluation and that there is a potential for assessment of tuition if an applicant initially admitted is later found ineligible.

School employees make initial determinations of eligibility upon presentation of an application for enrollment. Enrollment must take place immediately in all cases except those of clear, uncontested denials. The applicant shall be placed on notice that student removal will result if defects in the application are not corrected, or an appeal is not filed in accordance with subsequent notice to the applicant. The student’s enrollment or attendance at school shall never be conditioned on advance payment of tuition in whole or in part.

If the school district determines a student is ineligible, then a formal “Notice of Ineligibility” must be sent and the district must advise the student that an appeal may be filed with the state commissioner of education within 21 days of the notice.

Proper Proofs and Procedures Students can be denied initial enrollment by a school district in very limited circumstances. School districts may have what they typically request as required documentation for registration, but they must accept a variety of documents, including but not limited to: property tax bills, deeds, contracts of sale, leases, mortgages, signed letters from landlords and other evidence of property ownership, tenancy or residency, voter registrations, licenses, permits, financial account information, utility bills, delivery receipts, and other evidence of personal attachment to a particular location.

However, this is not an exhaustive list, and school districts may accept forms of documentation not listed here. Importantly, a school district is required to consider any proof of residency that is submitted.

Immigration Status Not a Factor School districts may not inquire as to immigration status, require a Social Security card or driver’s license, or request as a condition of enrollment any information or document protected from disclosure by law, or pertaining to criteria that are not a legitimate basis for determining eligibility to attend school. This includes: income tax returns, documentation/information relating to citizenship or immigration/visa status (with certain exceptions), documentation/information relating to compliance with local housing ordinances or conditions of tenancy.

The district only may consider this type of information if it is voluntarily submitted by the applicant. School districts cannot deny enrollment due to the fact that the student is residing in a motel, campground, 65-and-older community, or other lodging that may be in violation of local municipal codes. It is the municipality’s, not the school district’s, obligation to enforce local ordinances.

Lack of birth certificate or immunization records at registration does not prevent a student from enrolling in a school district. However, there are specific time frames for those documents to be supplied. In fact, failure to provide immunization records within the allotted time frame can exclude a student from school.

Regulation Interpretation The majority of students attending school in a district will be living with their parent or guardian. The parent or guardian must permanently reside in the school district. A home is considered permanent when the parent, guardian or student intends to return to it when absent and has no present intent of moving from it. If a student’s parent or guardian has more than one home, the student’s domicile is considered the permanent home.

In family custody cases, where a student attends school is often in the divorce decree or child custody order. If there is no court order establishing residency, the student is considered domiciled in the district in which he or she spends the majority of time. Court orders may often be a source of uncertainty for a school district. If a school employee is presented with an order pertaining to a student and is uncertain of its effect, he or she should contact the district’s solicitor for assistance.

Homeless Students and Families Notably, a family that moves to a school district as a result of being homeless is entitled to attend the school district or their previous school district, at the previous school district’s expense while they remain homeless. Homeless student tuition contracts are often on board agendas for board members to approve. The educational rights of homeless students in New Jersey are governed by state regulation as well as federal regulation, known as the McKinney-Vento Act.

Students placed in the home of a district resident by court order, such as with foster parents, may attend that school district. For example, this includes students placed by the CP&P or a court order specifying a school district for educational purposes.

Students may attend school in a district if they are living in the home of someone residing in the district who is watching the student while their parent or guardian is away on active military duty with the National Guard or reserves.

Students may attend school in a district with permission from the local board of education. This often includes tuition students, senior privilege students, or other students permitted by local board policy.

Other Circumstances Students may also attend school in a district if they are living with a person, other than their parent or guardian, who is domiciled in the school district and that person is supporting the student without compensation, as if the student were his or her own child, because the parent cannot support the child due to family or economic hardship. These students are commonly known as “affidavit students.” In these cases, the district may require a person supporting a child to submit a sworn statement that he or she:

  • Is domiciled in the district;
  • Is supporting the child gratis;
  • Will assume all personal obligations for the child relative to school requirements; and
  • Intends to keep and support the child gratuitously for longer than the school term. The student’s parent or guardian must submit a sworn statement that he or she is not capable of supporting or providing care for the child due to family or economic hardship, and that the child is not residing with the resident of the district solely for the purpose of receiving a free public education within the school district, as well as any supporting documentation required by the school district.

Students may attend school in a district when they are living with a parent or guardian who is temporarily residing in a district notwithstanding domicile elsewhere as long as the reason for such residency is, “not solely for purposes of a student attending a district of temporary residence.” The burden is on the parent to prove this. For example, the parent may have temporarily moved to the district to be closer to a medical treatment facility or to work on a long-term professional endeavor in the area.

Removing an Enrolled Student School districts may use staff to investigate allegations of enrolled students not residing in the school district. School districts may also employ investigators to uncover fraudulent residency activity. If a school district believes a student is not residing in the district based upon evidence and information the school district obtains, the school district sends the parent or guardian an Initial Notice of Ineligibility.

The Initial Notice of Ineligibility provides the parent or guardian with the option to remove the student from the school district or request a hearing appealing the determination before the board of education. If the parent or guardian requests a board hearing, the student is allowed to remain in school until the board makes its determination following the hearing. During the hearing the parent or guardian may present evidence in support of their claim that the student does reside in the school district.

A Determination of Ineligibility If the board determines the student is ineligible to attend school in the school district, the parent or guardian will receive a Final Notice of Ineligibility. The Final Notice of Ineligibility notifies the parent or guardian they have 21 days to appeal the board’s decision to the state commissioner of education, and the student is allowed to continue to attend school during this time period. If no appeal is filed by day 21, the student is removed from school.

If the parent or guardian does appeal to the commissioner and withdrawals the appeal, fails to prosecute the case, or loses at trial, the parent or guardian may be assessed tuition for any period of ineligible attendance, including the initial 21-day filing period.

Residency Revisited Residency determinations require an informed investigation into the facts underlying each particular student’s unique situation. Adhering to proper procedures and proofs will ensure that students are treated consistently and afforded an education as mandated by law, and will greatly reduce a school district’s potential liability in contested residency cases.

Amy Houck Elco is a partner at Cooper Levenson in the education department and can be reached at [email protected]. Kelli Prinz is an associate at Cooper Levenson in the education department and can be reached at [email protected].